Vicious Cycle: When Those Abused By Trademark Abuse Others With Trademark

from the neverending-story dept

There's a theory I learned in my college psychology classes about the nature of abusers and their victims, and what are the best criteria for predicting if a person will become an abuser. While the causes and histories of abusers are as varied as you'd expect, the general thought was that the best predictor for finding a future abuser was whether that person had been abused themselves. The study topics of that class centered around emotional, physical, and sexual abusers, but I see no reason why we can't apply the theory to other types of "abuse."

Say, trademark, for instance. Is someone who was bullied long ago over a trademark more likely to bully others in the same manner? I'm not sure, of course, but here's one anectodal instance of a small liquor marketer who felt the stern hand of a trademark bully long ago and has since turned to that tactic himself. Let's start off by examining the patient's history, shall we?

In 2000, [Andre] Levy launched a whiskey brand called Wild Geese. To Levy and his Irish wife Mairade, who live in Switzerland, the brand clearly evoked the story of 17th century Irish soldiers, known as the Wild Geese, who fled to France at the end of a war with the English. Pernod Ricard (RI:FP), the spirits company that owned Wild Turkey bourbon at the time, thought the new brand looked like a trademark violation. Levy, like the Irish soldiers that inspired him, eventually capitulated before a more powerful opponent. In 2008, he added the phrase “Irish Soldiers and Heroes” to the name on bottles sold in the U.S., which he says sufficiently distinguished it from the other wild fowl-branded booze. He later added the tagline “Untamed,” registering the mark with the U.S. Patent & Trademark Office in 2011.

So, here we see the "abuse." Now, just to be clear, I don't mean to equate trademark disputes with personal abuse. They're obviously not the same thing and this is obviously an incredibly imperfect analogy. That said, seen through the lens of that analogy, one might expect that going through what had to be quite a frustrating experience with Wild Turkey acting the absolute fool and stomping on the little guy (classic abuser behavior) could be an indicator that Levy would cycle into becoming an abuser himself. And, in my estimation, that's exactly what he did. Remember that "Untamed" trademark?

Last year, Bacardi sought to register the phrase “Bacardi Untameable” with the USPTO. Levy filed an objection and hopes to persuade the trademark office that Bacardi’s application, if approved, would violate his existing mark. In addition to his formal objection, Levy launched a website that asks visitors to rally lawmakers and bartenders to his cause. His tone is blustery: “Bacardi’s actions are a danger to all entrepreneurs and to Irish heritage,” the website says.

Like the earlier case, this seems to be a case of trademark over-protectionism. Customer confusion appears quite unlikely, given the plain branding with Bacardi's name on the bottle and its status within the industry. It's also quite likely that the marketing teams at Bacardi had no idea Levy and his whiskey brand even existed. Yet, here we are, with a trademark dispute and overblown claims about Bacardi endangering "all entrepreneurs" and "Irish heritage." Please.

But that's what happens in these abuse cycles. Rationality is done away with by the past and common sense is replaced by senses of anger and loss. Again, not a perfect analogy, but should you take a moment to examine the neverending march towards more protectionism of intellectual property, this pattern or cycle of victims turning into abusers fits like a jigsaw piece in just the right puzzle.